Summum for Educators to Think About

By Mark Walsh — November 13, 2008 5 min read
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The following story will appear in next week’s issue of Education Week. I wasn’t sure what to expect going into Wednesday’s arguments about the Summum “7 Aphorisms” monument case. One thing I noticed is that virtually every conservative legal organization that has ever been involved in suing a school district was involved in the case, and not all on the same side. So I knew it had to be interesting. (Here’s a link to all the briefs, thanks to the ABA.)

Monument Case Before High Court Has Implications for Schools

Issue of government speech
arises over Utah park displays

By Mark Walsh

It wasn’t apparent from the oral arguments last week, but a case before the U.S. Supreme Court about a small religious sect’s efforts to display a monument with its principles in a city park has implications for free-speech and establishment-of-religion questions in public schools.

Summum, according to its Web site and court papers, is a 33-year-old, Utah-based sect that incorporates elements of “Gnostic Christianity” and practices “modern mummification” for both people and pets.

The group wants to place a stone monument in a public park in Pleasant Grove City, Utah, displaying its “Seven Aphorisms”—principles that revolve around such terms as “vibration,” “opposition,” and “rhythm.” The city displays a number of permanent items in the park, including a pioneer cabin, Utah’s oldest school building, and a monument of the Ten Commandments donated by a civic group, the Fraternal Order of Eagles, in 1971.

The city rejected the Summum sect’s proposed monument, saying such permanent additions to the park must relate to the city’s history or be donated by a group with strong ties to the community. That prompted a lawsuit primarily on First Amendment free-speech grounds.

“The city here gave the Eagles access to its public park for a display about the Ten Commandments, and it denied Summum access for a display about the tenets of its faith,” Pamela Harris, a lawyer representing the religious group, told the justices during the Nov. 12 arguments in Pleasant Grove City, Utah v. Summum (Case No. 07-665). “That’s a violation of the core free-speech principle that the government may not favor one message over another in a public forum.”

Jay A. Sekulow, the lawyer representing the Utah city, told the justices that a federal appeals court erred when, in ruling for the religious group last year, it held that the city’s acceptance of variety of permanent displays created a public forum under the First Amendment.

“Here each of the monuments on display ... have been selected by the government, are owned by the government, controlled by the government, and are displayed on government property,” he said. “When the government is speaking, it is free from the traditional free-speech constraints of the First Amendment.”

School Tiles and Textbooks

Numerous groups filed friend-of-the-court briefs in the case, with some citing potentially analogous situations in the public schools.

One case cited in the briefs involved parents who were denied permission to put religious messages on memorial tiles at Columbine High School after the 1999 slayings at the Colorado school. A federal appeals court had ruled that the tile project on a school wall was a form of school-sponsored speech, and that school officials were not practicing viewpoint discrimination when they barred the religious messages.

Another case cited involved a challenge to the Texas state board of education’s approval of textbooks by the author of a rejected science text. A federal appeals court held that the textbook-approval process was the state speaking, and not the author.

Liberty Counsel, a conservative legal group that filed a friend-of-the-court brief on the side of Pleasant Grove City, argued that when the government speaks on its own property, it does not have to let others speak as well.

If the Supreme Court rules for Summum, “whenever a teacher cites disapproval of smoking, she will be required to open her classroom to private speakers with opposing messages,” Liberty Counsel’s brief says.

Meanwhile, any case in which the Ten Commandments lurk in the background is potentially important for educators, because there are ongoing efforts—some by private groups, some by schools themselves—to find constitutional ways to display the Decalogue in public schools.

During oral arguments, the justices appeared sympathetic to the idea that Pleasant Grove City should not have to open the “forum” of its park to all permanent displays. But the justices were also troubled by how to analyze the Ten Commandments monument in the city’s park.

“If it’s government speech, ... what is the government doing supporting the Ten Commandments?” Chief Justice John G. Roberts Jr. asked.

Justice Antonin Scalia later said it would depend on what the government was saying about the monument.

“If the government is saying the Ten Commandments are the word of God, that’s one thing,” he said, “and if the government is saying the Ten Commandments are an important part of our national heritage, that’s something else.”

Justice Scalia is on record as deeming such government displays of the commandments to be the latter, and perfectly constitutional. In 2005, the Supreme Court sent a mixed message about such displays, upholding the display of a civic-donated Ten Commandments monument similar to the one in Pleasant Grove City, while striking down displays in two courthouses because those displays had been motivated by religious purposes.

The two decisions—McCreary County v. American Civil Liberties Union of Kentucky and Van Orden v. Perry—did not affect the validity of the court’s 1980 ruling in Stone v. Graham, which struck down a Kentucky law requiring that the commandments be displayed in public schools. (See Education Week, June 27, 2005.)

Ms. Harris, the lawyer for Summum, did her best to try to convince the justices that the religious monuments would not be perceived as the government’s message.

“Given all the legal sensitivities around a Ten Commandments monument, your average citizen, when they see a religious monument in a park, may well think that may be private speech because the government usually can’t endorse ... religious speech,” she said.

A version of this news article first appeared in The School Law Blog.